Thursday, January 31, 2013

The New York Times had a front page story a couple days ago that, as The Art Market Monitor put it, was "a jumble of concerns about the art market and how it isn't regulated." There seemed to be two main concerns: so-called "chandelier bidding" (the fact that "[a]t major auctions the first bids announced for a piece are typically
fictional — numbers pulled from the air by the auctioneer to jump-start
bidding") and that galleries don't post price lists.

As for the first issue, Felix Salmon explained back in 2007 that chandelier bidding is "not a bad thing at all: in fact, it’s a necessary thing if the auction, as designed, is to work." Its function is "to get the bidding up to the reserve price. But remember, that’s exactly what both the buyer and the seller want: they both want a deal acceptable to them. If there were no phantom bids, then the item for sale would simply not get sold." "There is no harm done": "if the deal does get done then everybody’s happy, and if it doesn’t then that’s the same outcome as if no phantom bid had been made."

"I don't see why this is really a newsworthy 'problem.' In the 10+ years I've been in the art business, I have never once heard anyone complain unprompted about the lack of prices being posted other than journalists. ... I'm personally not sure why this issue keeps coming up in the press. Perhaps ... and I'm just wondering out loud here ... it's because the lack of posted prices confirms some journalists' resentment that if you have to ask you can't afford it. ...[I]f this practice prompted complaints to the government on a regular basis, perhaps I could see the Times' 'expose' serving some public good. As it is, though, it really seems much ado about nothing."

"It is tempting to think that the limitations on deductions will hurt the
rich by cutting back on their deductions. But the burden will fall
heavily on the recipients of charitable support, for as the price of
making a charitable gift rises ..., the
level of charitable giving will decline."

Monday, January 28, 2013

The Philadelphia Inquirer: "Attendance at the Barnes Foundation, which opened with much fanfare on
the Benjamin Franklin Parkway in May, has exceeded all projections,
topping 200,000 in only seven months."

Thursday, January 24, 2013

The Nation's Jon Weiner has a post criticizing Columbia University for having sold a Rembrandt in 1974 for $1 million that's now "back on the market this year, with a price tag of $47 million." He says the rise in price makes them "look foolish."

Judith Dobrzynski responds here, noting, among other things, that Weiner "forgets ... that Columbia doesn’t have an art museum — unlike Brandeis and his other generalized colleges."

I think that's the standard way of thinking about these things -- that it's one thing for a university to sell a work out of what it calls a "museum," and another thing for it to sell from the university's (non-museum) collection.

Saturday, January 19, 2013

That's the headline from Ars Technica, regarding photojournalist Daniel Morel's victory in his copyright lawsuit against news organizations that used his photos of the 2010 Haiti earthquake after they were posted on Twitter. The decision is here.

Eric Goldman has everything you need to know about the decision. His bottom line:

"AFP should have looped in the co-defendants and written a check from day
one. After furiously litigating the case for almost two years, it's
definitely going to be writing a check to Morel. ... [T]here are a ton of interesting issues addressed in
the order, but the simple takeaway is something we already knew: stuff
that's posted online is not necessarily fair game for recycling,
especially not photos ...."

"The analysis is pretty straightforward: (i) Photographs can be
copyrighted. (ii) This photograph is original enough to be judged
copyrightable. (iii) Most if not all copyrightable works can and should
be separated analytically into original and therefore protectable
elements, on the one hand and un-original elements (things that are
copied from others, or things that are simple or trite, or things that
are “facts” or “ideas” in copyright-speak), on the other. (iv) An
accused infringer is liable only for copying or adapting or publicly
performing or displaying original material without permission or excuse.
(v) Sony and the other defendants clearly adapted the plaintiff’s
photograph without permission, but they adapted un-original parts on the
one hand and copied too little of the original parts on the other."

In the comments James Grimmelmann predicts the case "may well enter the copyright teaching canon: it does a good job walking
through the core issues of originality, filtration of uncopyrightable
elements, and similarity of expression."

UPDATE: My friend, copyright guru Bob Clarida emails: "It's a fascinating case on human-interest terms, and it makes the copyright issues really clear: you can copy something very closely, but you don't infringe unless you copy protectable elements. Everybody gets that, rationally, but to see these pictures really is worth many thousand words."

Wednesday, January 16, 2013

Sheppard Mullin has an update on the Jenack auction house case. They give a maximalist reading of the Appellate Division decision ("The Jenack decision, if left uncontested, could have far-reaching implications for the New York auction business"). Not everyone agrees.

Tuesday, January 15, 2013

I love this New York Times story by Patricia Cohen involving the Brooklyn Museum.

Seems a large group of works were given to the museum in 1932 by the estate of Col. Michael Friedsam. It turns out, though, that about a quarter of the 926 works are "fakes, misattributions or of poor quality." The museum would like to deaccession those items and avoid the costs of storing them.

So what's the problem?

Well, according to Cohen, "the will specified that the art should go to the colonel’s
brother-in-law and two friends if the collection was not kept together." So if the museum gets rid of the 229 unwanted items, it runs the risk of losing the whole collection.

The Donor Intent Police should of course be thrilled with that outcome. If the will says the collection is forfeited if it's broken up, then that's the way it has to be. After all, if people can't be certain that the fakes in their collection will remain in storage at major museums, why will they ever make another donation?

It's of course a ridiculous situation, but the Donor Intent Police have no standing to all of a sudden start interpreting the conditions of people's gifts in the light of changed circumstances. That's the point of their strident opposition to the Fisk transaction: who cares if Fisk has to shut its doors:? The donor said no sales and that means no sales, no matter the consequences. Same with the Barnes. Who cares if the institution was running out of money? Who cares about increased public access to the collection? All that matters is the intent of the donor (interpreted in the most literal way of course ... the Donor Intent Police are all strict constructionists).

So now that this shameless attempt to violate a poor donor's intent has been made public, I expect we'll get the usual howls of outrage from the Donor Intent Police.

Saturday, January 12, 2013

There’s
a really silly article regarding Richard Serra in the new Art
Newspaper. Apparently it’s breaking news that one of his drawings
needed some conservation in 2011. Really, that’s all there is to the
story. (Full disclosure: Serra is a longtime client of our firm.)The
headline and lede say Serra “threatened” to “withdraw” one of his
drawings from the Broad Collection. That’s not true at all; he simply
objected to its being exhibited given its sub-optimal condition, which
he had every right to do.The
story goes on to suggest that “historical accuracy” may have been
compromised because … I’m not sure why, really. The drawing was made in
1989. It was damaged, and in 2011 he restored it. He left the date as
1989, and the suggestion of the story is that there was something wrong
with that. But we don’t change the date of a work every time it’s
restored. There’s no “historical inaccuracy” involved. It’s really a
ridiculous story.

ARCAblog: "The museum has posted detailed versions of the photos on their Facebook
page and would like help spreading the images world wide. Please like and
repost. With the help of social networking perhaps these objects will be
reported as being seen."

"The 'new' Barnes ... shouldn't work, but it does. It should be inauthentic, but it's not. It has changed, but it is unchanged. The architects have succeeded in retaining its identity and integrity without resorting to a slavishly literal reproduction."

Reports the Chronicle of Philanthropy. According to the story, the Charitable Giving Coalition wrote a letter to Sen. Reid this summer "stating its opposition to the [charitable] deduction limits."

Nonprofit Law Prof Vaughn James is unsympathetic to the Coalition's argument: "I cannot understand why the organization's members believe that the only reason people give to nonprofits is to get a tax deduction!"

Funny how the nonprofit community can be so confused about why people give to their organizations!

In fact, some people believe that if you eliminated charitable deductions, every hospital and university and not-for-profit agency across the country would suddenly find themselves on the verge of collapse.

Daniel Grant's year-in-review at the Huffington Post. Among others, he mentions the Richard Prince appeal ("The decision of the appellate court is likely to reverberate for years to come"), the Eggleston case ("it may establish a legal definition of 'limited edition' that instructs artists, galleries and publishers on what is and isn't permissible"), the Knoedler cases ("the lawsuits against Knoedler ask, What comprises 'due diligence': What do we expect of art dealers when they sell us expensive artworks by important artists?"), and the Resale Royalty decision.

Rejoicing in the Wall Street Journal, Karen Wilkin doesn't seem to grasp the obvious point that the intentions of a long-dead donor (however hazily expressed) are far more important than "being able to study this glorious, prescient vision of a pastoral idyll at eye level, close up."